ecclesiasticallaw

Ecclesiastical law

Month: November, 2012

The Bishop: Pastor, Minister and Ordinary

The constitutional functions of a bishop are now the subject of much detailed statutory regulation.  There is also much commentary and case law to be found on the subject in the older ecclesiastical law.  However, the three functions are helpfully outlined and summarised in the revised Canons of the Church of England, principally Canon C18.

Pastor

The bishop is ‘the chief pastor of all that are within his diocese, as well laity as clergy’.  He therefore has a direct pastoral responsibility for both clergy and laity. 

The pastoral function towards the laity is known as the cure of souls.  This is shared with the incumbents of benefices.  The shared cure of souls is made clear by the traditional wording of the bishop’s deed of institution to a new incumbent ‘habere curam animarum, et accipe curam tuam et meam‘ (quoted in Phillimore’s Ecclesiastical Law, 2nd edition 1895, at p.354).  Incumbents are assisted in their pastoral duties by other priests, also by deacons and lay ministers.  In Bishop of Winchester v Rugg (1868) 2 Admiralty and Ecclesiastical 247, the Court of the Arches suggested that the Bishop ‘has cura curarum animarum within his diocese’ (p.252).

The bishop’s principal duty as pastor of the laity is to supply them with clergy.  Only a bishop may confer holy orders, and no minister, ordained or lay, may minister within the diocese without the bishop’s authorisation.  Canon C18(6) therefore requires the bishop to ‘be faithful in admitting persons into holy orders and … [to] provide, as much as in him lies, that in every place within his diocese there shall be sufficient priests’.  There is no express requirement on the bishop to supply lay ministers.

The bishop’s pastoral responsibility towards the laity also includes consecrating new churches, churchyards and burial grounds (Canon C18(4)).

However, the bishop is also pastor of his clergy, as Hooker says, ‘a pastor even to pastors themselves’.  Canon C23(1) provides that the rural dean (or area dean) has particular responsibility to advise the bishop of ‘any case of serious illness or other form of distress among the clergy’.

The bishop has a pastoral responsibility for both clergy and laity who are opposed to women priests.  The 1993 Episcopal Ministry Act of Synod requires him to ‘make pastoral arrangements so far as possible within his diocese for appropriate care and oversight of the [opposed] clergy and parishes’ (s.3). 

A diocesan bishop may be assisted by one or more suffragans, and also by bishops specially appointed under the 1993 Act of Synod to care for opponents of women priests.  The word ‘suffragan’ is derived from the Latin word suffragari ‘to help’.  Canon C20 suggests that the suffragan’s relationship to the diocesan is analogous to that between an assistant curate and an incumbent.  It rather labours the point:

‘(1) Every bishop suffragan shall … execute such things pertaining to the episcopal office as shall be commissioned to him by the bishop of the diocese …

(2) Every bishop suffragan shall use, have  or execute only such … authority … as shall be licensed or limited to him … by the [diocesan] bishop’.

As chief pastor the bishop is generally required to reside within his diocese.  However, unlike other clergy, senior bishops have a constitutional responsibility for the governance of the secular state.  Canon C18(8) therefore provides that the bishop is permitted to reside in London ‘during his attendance on the Parliament, or on the Court, or for the purpose of performing any other duties of his office’.  Such absence in London is deemed to be residence in the diocese.

According to Canon C17(4) the Archbishop is the principal minister of the province.  However, the Archbishop is not the chief pastor of the province.  Thus there is no pastor superior to the bishop.

Minister

What is the purpose of the bishop’s pastoral duties?  It is the administration of the Divine Word and Sacraments.  This ministry is the raison d’etre of the bishop’s office.  The bishop’s pastoral function is not an end in itself.

The words pastor and minister are often used interchangeably but they have different meanings.  Canon C18 rightly draws a distinction between the bishop’s pastoral and ministerial functions.  ‘Pastor’ implies leadership or oversight of a community.  ‘Minister’ implies a responsibility for the thing, or things, that are administered. 

The bishop is ‘the principal minister’ of his diocese.  He possesses the ‘fullness of ministry’ (or fullness of priesthood), since he alone may administer the ‘sacramental’ rites of confirmation and ordination (Canon C18(4)).  Otherwise, his ministerial function is shared with all ordained and lay ministers, though administration of the sacraments is reserved to ordained ministers.

The most important ministerial acts of a bishop are confirmation and ordination, but he has certain other ministerial prerogatives.  The bishop traditionally preaches in his cathedral on the great feasts of Christmas, Easter and Pentecost.  Canon C18(4) suggests that the bishop also has the right to officiate at divine service in any church or chapel within his diocese, ‘save in places … exempt by law or custom’.

Archbishops have the particular ministerial function of ordaining new bishops (Canon C17(4)), though with the assistance of other bishops.  The Archbishop of Canterbury is, of course, the minister of the ancient rite of the coronation of the Monarch.  It seems that the Archbishop of York has the right to crown a Queen Consort.

Ordinary

Canon C18 confirms that the bishop has ‘jurisdiction as ordinary’ within his diocese.  The bishop’s function and raison d’etre as principal minister of the diocese requires a power of governance. 

‘Jurisdiction as ordinary’ means immediate, ex officio jurisdiction.  These characteristics distinguish ordinary authority from delegated authority, which must be specifically conferred on the delegate by the ordinary.  The delegation of authority by the ordinary must in turn be distinguished from the ordinary’s taking advice or assistance when exercising authority personally.

The ordinary power of governance, unlike the bishop’s pastoral and ministerial functions, is not generally shared with other clergy and lay ministers.  Among the diocesan clergy, only the archdeacons share the bishop’s ordinary authority. 

Canon C22(2) provides that ‘Every archdeacon within his archdeaconry exercises the jurisdiction which he has therein as an ordinary jurisdiction’.  However, C22(4) makes clear that ‘Every archdeacon shall … carry out his duties under the bishop and shall assist the bishop in his pastoral care and office’.  The archdeacons are therefore the assistant ordinaries of the diocese. 

Trollope succinctly summarised the constitutional relationship between bishop and archdeacons in The Warden: ‘when a bishop works, archdeacons have but little to do, and vice versa’.

The chancellor also has ordinary authority in the diocese at common law.  The dean and chapter are the ordinary authority of the cathedral.  Thus there are four diocesan ordinary authorities at common law:

(1) the bishop

(2) the archdeacons

(3) the chancellor and 

(4) the cathedral chapter.

Although they share his ordinary authority, the archdeacons may not share the bishop’s pastoral ministry, because they are not ex officio parish priests.  Thus Halsbury’s Laws suggests that it is ‘doubtful whether the archdeacon as such has a cure of souls’ (4th edition, para 496).  Cathedral canons have no cure of souls for the same reason, though the older ecclesiastical law understood that the dean has the cure of souls of the chapter and of other cathedral officeholders (Phillimore Ecclesiastical Law, 2nd edition, 1895, pp.130 and 140).  

The traditional expression of ordinary authority in the diocese is the archdeacon’s annual visitation of all the parishes in the archdeaconry.  Canon 60 of 1603 provided that the bishop should visit his diocese once every three years and use the occasion to administer confirmation.  The archdeacons only visited two years in every three.

The revised Canons relieve the bishop of the duty to make a triennial visitation.  (A visitation is no longer necessary for the bishop to administer confirmation.)  However, Canon C18(4) affirms that the bishop has the right to hold a visitation of his diocese ‘at times limited by law or custom’.  Canon G5(2) provides that when the bishop holds a visitation the ordinary jurisdiction of the archdeacons is automatically suspended or ‘inhibited’.

Canon E1(4) confirms that the churchwardens are the officers of the ordinary within the parish.  As his officers, the churchwardens traditionally flank the bishop in procession when he attends their church.  The rural dean (or area dean) may also be a kind of officer of the ordinary, having the responsibility to ‘report to the bishop any matter within the deanery which it may be necessary or useful for the bishop to know …’ (Canon C23(1)).

The pastoral arrangements made for those opposed to women priests do not impair the bishop’s ordinary jurisdiction.  The 1993 Act of Synod confirms that the bishop continues as ordinary of his diocese. 

Canons C18(3) and C22(3) provide that a bishop or archdeacon may delegate his ordinary authority, in the bishop’s case, to ‘a vicar-general, official or other commissary’, and in the archdeacon’s case, to an ‘official or commissary’.  However, the revised Canons provide no definition of a ‘commissary’.  Canon 128 of 1603 was rather more specific, providing that ordinary authority could only be delegated to a beneficed priest or a suitably qualified ecclesiastical lawyer.  The grant of marriage licences is delegated to officials known as ‘surrogates’, who are usually senior parish clergy.

Suffragan bishops are not ordinaries at common law, nor indeed in statute law.  Their original function was to assist the diocesan bishop with his pastoral work, usually by ordaining and confirming, while the archdeacons assisted with jurisdiction.  Today, however, the distinction between suffragans and archdeacons is becoming increasingly blurred (perhaps to the point where the distinction can no longer be justified). 

The Dioceses, Pastoral and Mission Measure 2007 continues the modern trend towards the sharing of episcopal functions, both of ministry and governance, within the diocese.  Under s.13 of the 2007 Measure the bishop may delegate to a suffragan or assistant bishop on an ongoing basis.  The 2007 Measure does not turn suffragan bishops into ordinary authorities.  However, a permanently delegated authority is, in practice, hard to distinguish from ordinary authority.

The functions delegated under s.13 must be specified in the instrument of delegation.  Any and all episcopal functions may be delegated except

(1) the power under Canon 4(3A) to request permission to ordain a divorced person and

(2) any power to refuse to permit women to be ordained or to officiate as priests within the diocese.

Episcopal functions may be delegated subject to conditions and may, but need not, be limited to a particular area of the diocese.  The instrument of delegation may provide for functions to be shared between the bishop and the suffragan.  A delegation under s.13 must normally be approved by the diocesan synod, but in a case of urgency the approval of the bishop’s council will suffice.  The diocesan bishop may vary or revoke a delegation, again subject to synodical approval.  The instrument may provide for its own termination after a specified period of time.

While the bishop and archdeacons exercise ordinary jurisdiction in the diocese, the Archbishop exercises metropolitical jurisdiction over the province.  The nature of this jurisdiction is explained by Canon C17(2):

‘The archbishop has throughout his province at all times metropolitical jurisdiction, as superintendent of all ecclesiastical matters therein, to correct and supply the defects of other bishops, and, during the time of his metropolitical visitation, jurisdiction as ordinary …’.

Canon C17(3) confers a similarly vague power of delegation on the Archbishop to that conferred on bishops and archdeacons.

The wording of Canon C17(2) makes clear that the constitutional relationship between the Archbishop and the diocesan bishop is not analogous to that between the bishop and the archdeacons.  The bishop’s authority does not automatically yield to that of the Archbishop.  Metropolitical jurisdiction is only engaged for some specific reason connected with the bishop’s inability to exercise his ordinary jurisdiction effectively. 

Thus in 1996 the Archbishop of Canterbury held a metropolitical visitation of Lincoln Cathedral in response to the unseemly squabbling there.  Recently there has been a metropolitical visitation of the Chichester diocese.

Ecclesiastical Sequestration

Halsbury’s Laws of England, volume 14 (the 4th edition)

Sequestration is the administration of the estate of a benefice otherwise than by the incumbent.  It is ‘a process … whereby the profits and income of the benefice … are ordered to be taken by … the sequestrator and to be applied in the manner required by the circumstances of the case …’ (para 892).

There are two types of sequestration:

(1) a creditor’s sequestration and

(2) the bishop’s (or ordinary’s) sequestration.

Creditor’s Sequestration

This occurs when an incumbent is declared bankrupt, or has an unsatisfied judgment debt entered against him.

Sequestration is required in such a case because of ‘[the] peculiar kind of interest which a parson has’ (Meredith (1879) 11 Chancery Division 731 at p.733)

‘The estate [of a benefice] cannot vest in the [trustee in bankruptcy or receiver] because he is a layman: it is an estate which can only be held by a clerk.  But then the law is not to be defeated by that circumstance.  It says that the profits of the living are applicable for the payment of creditors, that the [trustee / receiver] has a right to issue a sequestration, which remains operative so long as the creditors are unpaid’.

Sequestration is effected by a order from the secular court to the bishop, requiring him ‘to enter into the benefice and the church and take and sequester them into his possession … until he has levied debts, costs and interest out of their profits’ (para 895).

Sequestration therefore gives the bishop a right of possession of the benefice estate.  However, possession extends only to the benefice glebe and tithe, not to the official residence (para 913).  Even though insolvent, the incumbent remains in office and continues to be responsible for the ecclesiastical duties of the benefice.  He therefore remains subject to the duty of residence on benefice, and this requires possession of the parsonage.

Once in possession the bishop appoints a sequestrator.  Thus the bishop acts under an order from the secular court, but the sequestrator acts under an order from the bishop.  The ecclesiastical sequestrator has no direct relationship with the secular court.

However, a sequestrator can bring an action ex officio ‘to the same extent as the incumbent might have done if the benefice had not been under sequestration’ (para 915).

The bishop remains responsible to the secular court for the sequestration.  However, the creditor’s claim on the benefice is subject to the Church’s jurisdiction.  The creditor has no control over the bishop’s choice of sequestrator.  If the incumbent is suspended from office as a result of ecclesiastical disciplinary proceedings, the creditor loses any rights over the benefice property (para 899).

The reason for this rule is, that if the incumbent is suspended from office then he ceases to be entitled to the benefice profits.  This means that the creditor also ceases to be entitled, since he claims through the incumbent (para 902).

If the incumbent is suspended, this also means that the creditor loses his place in the queue for payment of debts.  A later sequestration, at the behest of another creditor, will have priority over the earlier sequestration that was lost because of the suspension.

The same consequences apply if the incumbent is moved to another benefice or ecclesiastical office instead of being suspended.  However, the incumbent is not permitted to accept a new office without the permission of both the bishop and the sequestrator (para 921).

If a creditor’s sequestration continues for six months, the bishop must assume responsibility for the ecclesiastical duties of the benefice (para 901).  This means that he can appoint a curate and also ‘inhibit’ the incumbent from officiating in church.  However, this does not assist the creditor, because the curate’s stipend is payable out of the sequestration and has priority over the debt owed to the creditor.

Bishop’s Sequestration

This is of two types:

(1) disciplinary and

(2) due to a vacancy in the benefice (para 905).

A bishop’s sequestration may be issued under various common law and statutory powers in respect of various disciplinary offences of the incumbent, including failure to reside on benefice, accepting secular employment and failing to repair benefice buildings.  A sequestration will issue if the incumbent is suspended from office as a result of disciplinary proceedings.

This time the bishop issues the sequestration, not the secular court.  A disciplinary sequestration may be subject to an appeal to the Archbishop.

If a sequestered incumbent has ex officio rights of presentation to another office, these are exercised by the bishop of the diocese in which the vacancy occurs, not by the incumbent’s own bishop or by the sequestrator (para 920).  However, a sequestered incumbent retains his right to appoint the parish clerk jointly with the parochial church council.

In a vacancy, as distinct from a disciplinary case, the sequestrators are ‘to account for the net balance [of benefice profits] to the succeeding incumbent, who may maintain an action against the sequestrators for the balance’ (para 910).

Although the general rule is that sequestration does not give the bishop possession of the official residence of the benefice, the Pluralities Act 1838 empower the bishop to enforce the incumbent’s delivery of possession to a curate, if the incumbent has been suspended from office (para 915).

Also, during a vacancy, the sequestrators must provide for ‘the care, custody and upkeep of the residence’ which presumably requires a degree of possession (para 911).

Bonaker v Evans

(1850) 117 English Reports 840

This concerned a bishop’s sequestration.  The bishop order sequestration of the incumbent’s benefice under a statutory power.  He was therefore acting of his own motion, and not in obedience to an order of the secular court.  His reason for doing so was that the incumbent has neglected to reside on his benefice, in breach of the bishop’s order to do so.

However, the secular court held that the sequestration was void.  It accepted that the bishop was ‘the proper authority to decide whether there has been a non-compliance with [his] order to reside’ (p.844).  However, this power was still subject to the requirement of natural justice that the incumbent should have a fair opportunity of answering the complaint of non-residence.

In this case natural justice had not been done to the incumbent.  The bishop had ordered him to reside, and had threatened sequestration, but the complaint of non-residence had not been made clear to him, and he had not been invited to rebut the complaint.

The requirement of natural justice arose because of the nature of the sequestration proceedings.  Was the bishop’s sequestration a ‘criminal’ punishment of the incumbent for the offence of non-residence?  It so, he was entitled to be properly heard before being punished.  Or was the sequestration merely a ‘civil’ remedy of enforcement of the incumbent’s acknowledged duty to reside on his benefice?

The court decided that it was both: ‘although one of the objects of … sequestration may be to enforce future residence, another clearly is to punish past delinquency’ (p845).  Also any disciplinary proceedings could ultimately result in the incumbent’s loss of his benefice, and therefore ‘certainly must be treated as penal’. 

Sequestration Today

The account in the 4th edition of Halsbury’s Laws suggests that there is extensive case law and statute law concerning sequestration.  Volume 34 of the very recent 5th edition of Halsbury’s Laws, published in 2011, makes only brief reference to creditor’s sequestration and concentrates on bishop’s sequestration (paras 698-714).  However, it notes that ‘writs of sequestration may still be applied for in the civil courts’ (para 669, note 3).  Thus it would seem that the old law remains in force.

However, the law concerning sequestration can be of little practical use today, beyond looking after the parsonage house during a vacancy.  This is because modern incumbents are no longer the legal owners of the property that was subject to sequestration.  S.15 of the Endowments and Glebe Measure 1976 provides that all benefice glebe should vest in the local diocesan board of finance.  Hence the incumbent has nothing left to sequester.  The incumbent retains a nominal freehold of the official residence, but the residence was always exempt from a creditor’s sequestration.

The Miscellaneous Provisions Measure 1992 confirms that the bishop has power to appoint the churchwardens, and other persons if he wishes, as sequestrators during a vacancy in the benefice (s.1).  Now he merely appoints them.  A formal writ of sequestration is no longer required.

The extensive law concerning sequestration reminds us how the status of incumbents has changed in recent decades.  Modern incumbents resemble salaried employees, with fixed stipends and other ‘terms of service’.  Their predecessors, by contrast, were really self-employed farmers, men of property who lived off the rents and profits of their estates.

Modern incumbents share some of the insecurity that attends secular employment.  They may be made redundant in the course of a pastoral reorganisation.  The bishop may also, in effect, withdraw the parson’s freehold by suspending the patron’s right of presentation to a vacant benefice (Mission and Pastoral Measure 2011, s.85).  Any ‘incumbent’ appointed while a suspension is in force is merely a licensee of the bishop.

Incumbents formerly had much greater security of tenure.  However, security of tenure did not guarantee security of income.  The incumbents of former times could not be made redundant like employees, but they suffered all the insecurities of the self-employed.  (This was long before farmers received state subsidies).  A bad harvest, or some other misfortune, could bankrupt the self-employed incumbent through no fault of his own.  The large number of reported cases on creditor’s sequestration may give the impression that many incumbents were feckless, or even dishonest.  This is unfair.

The Right to Worship

No parish or parishioner has a right to a parish church.  There is no rule of common law that a parish must have a church, or that a parish may not be constituted as such without a church.

S.31(4) of the Mission and Pastoral Measure 2011 follows earlier Measures in providing that a pastoral scheme may create a new parish even though it has no parish church.

However, s.43(1) of the Measure apparently obliges the bishop to provide a place of worship in every parish.  According to s.43(1), where a parish has no church, the bishop must license a building, or part of a building, for public worship.

According to s.43(2), where there is no parish church, the bishop may designate another church, or a building already licensed for worship, as the parish centre of worship (‘PCW’).  The PCW is then deemed to be a parish church.  A parish church may not itself be designated a PCW.  The wording of s.43(2) suggests that a PCW may be designated even if there is a parish church already.

S.41(5)(a) of the 2011 Measure alludes to the common law rights of parishioners in providing that, where a parish has more than one parish church, the parishioners have the same rights of worship in each.  However, it does not define these rights further. 

The rights of parishioners over their church (where there is at least one church) are described by Chief Justice Holt in Britton v Standish (1705) 90 English Reports 976:

‘Parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient and a parson from whom they had right to receive [religious] instruction’. 

The case of Taylor v Timson (1888) 20 Queen’s Bench Division 671 is often cited in support of the right to worship in the parish church.  Master Taylor was a pupil at a ‘reformatory’, evidently a school for delinquent boys.  The boys were not welcome in the parish church.  Mr Timson, a churchwarden, forcibly prevented Taylor from entering the churchyard to attend divine service in the church.  Taylor sued Timson for assault.

The court held Mr Timson liable for assault, because he had no right to prevent Taylor from attending the church.  Taylor was a parishioner and therefore had a right to attend service.

However, the court went further than this.  It held that a churchwarden cannot lawfully prevent a person from attending service, even if he honestly believes that the church is full up, and even if the person is not a parishioner.

The reason for this is that a churchwarden ‘ha[s] no interest in the freehold of the churchyard or the church itself … such an act [of exclusion] … ought, if done at all, to be done by the clergyman’ (p.674).  The churchwarden’s authority is limited to the distribution of seats.  If the seats are all taken, the churchwarden has ‘[no] right to say that people shall not stand in the aisle’ (p.675).  The court declined to speculate what should happen if the church is overcrowded.

This is not a very satisfactory analysis.  First, it is a surprising assertion that only the freeholder of property, acting in person, is entitled to control entry to that property, and that no agent or custodian may do so on his behalf.

A difficulty would arise if the incumbent is not the freeholder of the church.  Presumably the non-delegable power to exclude then vests in the lay rector, but the lay rector may not be available.  This notion in turn conflicts with the judgment in Griffin v Dighton and Davis (1864) 122 English Reports 767, which makes clear that the lay rector’s freehold of the parish church is ‘naked and abstract’ with no right of possession.

It is also difficult to see how the right to allocate seats can, either in principle or practice, be separated from the right to control entry to the church.  If the churchwardens can decide where people should sit, they ought also to decide whether, or where, people may stand.  It is illogical to allow the churchwardens the former right, but deny them the latter.  It also effectively deprives the churchwardens of the ability to maintain order during service.  Someone might decide to stand in the pulpit, or at the altar, thus obstructing the service, yet the churchwardens would be powerless to restrain him.

There is plenty of authority for holding that the churchwardens’ function extends to the maintenance of order during divine service.  The allocation of seats is but one aspect of this function.  The symbol of the churchwarden’s office, the stave, alludes to the maintenance of order.  Canon 19 of 1603 required the churchwardens ‘not [to] suffer any idle persons to abide either in the churchyard or church-porch’.  Canon 28 required them to send non-parishioners back to their own churches.  Canon 60 requires them to repel unauthorised preachers.  Canon E1(4) now provides that the churchwardens shall ‘maintain order and decency in the church and churchyard, especially during the time of divine service’. 

The parishioner’s common law right to attend service in the parish church is not incompatible with the churchwardens’ duty to maintain order.  The churchwardens are themselves parishioners, and one at least is elected by the parishioners.  For the practical reasons stated, the churchwardens’ duty is really necessary to give effect to the common law right.  Divine service must be orderly, and this requires somebody to keep order.

Of course, it is always possible that the churchwardens may abuse their power, wrongly excluding people they dislike on spurious grounds.  (This may well have been the case in Taylor).  In that event, the excluded parishioner has two possible remedies:

(1) he can complain to the bishop, whose officers the churchwardens are, and /or

(2) he may ask the secular court to enforce his right to worship.

(Master Taylor actually sought an injunction in this case, but the court declined to grant it.) 

However, neither of these remedies denies the churchwardens’ custodianship of the church under the incumbent.

The court in Taylor made the farfetched point that, if the churchwardens prevented a parishioner from attending service, that parishioner might be prosecuted in the ecclesiastical court for his non-attendance.  There was no possibility of such a prosecution by the 1880s, but, if there had been, the parishioner would have an obvious defence, that he presented himself at church but was refused admittance by the court’s own officers.

The case of Cole v Police Constable 443A (1936) 3 All England Reports 107 arose from an altercation in Westminster Abbey.  Mr Cole used to offer his services as a guide to visitors to the Abbey.  The Dean did not approve and gave orders that he be excluded.  Mr Cole persisted in plying his trade.  Police were called, and ejected him.  Mr Cole sued the police for assault.

Although Westminster Abbey is a royal peculiar, not a parish church, Mr Justice Goddard (later Lord Chief Justice Goddard) took advantage of the case to discuss parishioners’ rights over their church.  He doubted the view, suggested in Taylor v Timson, that the right to worship is correlative to the statutory duty to attend service that was imposed by the Acts of Uniformity after the Reformation.  Instead he concluded that

‘the parishioner’s right to attend his parish church must be of far more ancient origin than that [i.e the Acts of Uniformity], and may be described as a common law right.  The church, by being dedicated to sacred uses, is being dedicated to the use of parishioners to be there for worship … the right of the parishioner to attend his church … depends, not upon the statute, but upon the wide and common law right’. 

This dictum supports the view that the origin of the parishioners’ common law right is proprietary.  Common law recognises that parishioners have a right of worship in their parish church, because the land and building were first given so that they might do this.  Common law therefore gives effect to the donor’s intention.

In an unpublished dissertation ‘Rights of Passage: The Basis of Lay Entitlement to the Occasional Offices’ (Cardiff University 2002), Jacqueline Humphries concludes that the legal rights of parishioners ‘recall [the Church of England] to its mission to the whole nation’ (p.93).  This may be so, but it would be more accurate to say that these legal rights are concerned, not exactly with the Church of England’s mission to the nation, so much as with its possession of a substantial amount of the nation’s property.

Only a parishioner has a common law right to attend the parish church.  Goddard J held in Cole that no non-parishioner has the right to attend.

Moreover, the right is limited to attendance at acts of public worship in the church.  The Court of the Arches held in Jarrett v Steele (1820) 161 English Reports 1290 that ‘no person has a right to enter [the church] when it is not open for divine service’, except with permission of the incumbent and churchwardens.

Thus there is no right to be in the parish church for private prayer.  The regrettable modern practice of locking churches for almost all of the time is not unlawful.

Disorder, or ‘brawling’, in the church and churchyard was formerly punishable by the ecclesiastical courts, which usually imposed a short period of excommunication or suspension ab ingressu ecclesiae on the sinner.  This jurisdiction was abolished by the Ecclesiastical Courts Jurisdiction Act 1860.  Perhaps this encouraged the court in Taylor v Timson to take such a restrictive view of churchwardens’ powers of keeping order in church.  However, the 1860 Act only abolished the ecclesiastical power to punish disorder in church.  It did not abolish the churchwardens’ function of maintaining order. 

Since 1860, offences of ‘riotous, violent or indecent behaviour’ in places of worship and churchyards, and disturbance or molestation of preachers and ordained ministers when they are performing their duties therein, are triable in the magistrates court, which may impose a fine or term of imprisonment of up to two months (s.2 of the 1860 Act).

Revoking a Presentation

The Legal Advisory Commission has drawn attention to an interesting point of ecclesiastical patronage law, in an opinion ‘Revocation of Presentation by the Patron, and Refusal of Presentee by the Bishop’ (published on the internet website of the Church of England, accessed 29th June 2012).

Can a patron

(1) revoke a presentation made to the bishop (i.e change his mind about a candidate that he has recommended) and / or

(2) vary a presentation by recommending two or more candidates to the bishop, instead of just one candidate?

The Patronage (Benefices) Measure 1986, which now regulates presentation, does not seem to consider this possibility.  S.13 of the Measure provides only that

(1) ‘The registered patron … shall not make to any priest an offer to present him to a benefice until [the making of the offer has been approved in accordance with the Measure]’

and

(6) ‘Where a priest accepts an offer made in accordance with the provisions of this section to present him to a benefice … the patron shall send the bishop a notice presenting the priest to him for admission to the benefice’.

No provision is made for the patron changing his mind, or presenting more than one candidate.

However, common law suggests that a lay patron may indeed revoke or vary a presentation.  This means that the bishop could not institute a priest whose presentation has been revoked.

The case of Rogers v Holled (1775) 96 English Reports 611 arose from a disputed right of presentation.  Mr Holled and another layman each claimed the right of presentation to the same vacant benefice, and presented different candidates to the bishop.

They later settled their dispute.  As part of the settlement, the other man withdrew his presentation in favour of Mr Holled’s.  He did this by notice in writing to the bishop, in which he requested the bishop ‘to deliver up the same

This slideshow could not be started. Try refreshing the page or viewing it in another browser.

to be cancelled’.

The court held that the notice of withdrawal was effective. ‘There is no doubt, but that by our law a lay patron may revoke his presentation at any time’.  Thus the bishop could not institute the candidate whose presentation had been revoked.

There is nothing in the Patronage (Benefices) Measure to disapply the common law rule.  The 1986 Measure imposes conditions and restrictions on the making of the presentation by the patron, but not on the revocation of a presentation.

However, the 1986 Measure may in effect restrict the lay patron’s right to vary presentation.  An offer of presentation generally requires the approval of the bishop and of the parish representatives.  They could therefore refuse to allow the patron to present more than one candidate.

According to Rogers v Holled, a clerical patron, as distinct from a lay patron, may not vary a presentation, and probably may not revoke a presentation either (p.612).

The reason for this distinction may be that a lay right of presentation is a right of property, whereas a clerical presentation is a spiritual function, subject to the bishop’s jurisdiction.  But this is to conjecture.

The references in s.13 of the Patronage (Benefices) Measure to an offer and acceptance of a presentation do not turn a presentation into a contract between the patron and the candidate.  There is no consideration for the offer, and if there was, it would be simony.

It is said that ‘Presentation passeth no interest, but is as a commendation’: Kitchin v Calvert (1611) 145 English Reports 332, at 334.  A presentee will therefore have no rights against patron who presented him to the bishop, and then changed his mind and withdrew the presentation.

There is nothing wrong in principle with a patron offering the bishop a choice of candidates.  It may well be good practice to do so.  Roman Catholic law clearly answers question (2) above in the affirmative.  Canon 160.1 of the Code of Canon Law 1983 provides that ‘A [patron] can present one or even several candidates, either at one time or successively’.   When a suffragan bishop is to be appointed in the Church of England, the diocesan bishop is required to nominate two candidates to the Monarch (Suffragan Bishops Act 1534).  A similar practice is followed when a diocesan bishop is to be appointed.

Canonical Obedience

Feudal Origin

Archbishops, bishops and lesser clergy are said to be bound to each other by a relationship of canonical obedience.  Canon C1(3) of the Revised Canons recites that

‘According to the ancient law and usage of this Church and Realm of England, the inferior clergy … owe canonical obedience in all things lawful and honest to [their] bishop … and the bishop of each diocese owes due allegiance to the archbishop of the province as his metropolitan’.

Canon C14 requires the bishops and clergy to take an oath of obedience to their respective superiors.  Lay readers and lay workers are also required to make a declaration of obedience to the bishop (Canons E7 and E8).

The account of canonical obedience in Canons C1(3) and C14 indicates its feudal character.  The concept dates from the time when authority was defined in terms of the relationship between a subordinate or ‘vassal’ and his immediate superior.  Everyone owed allegiance to his immediate superior, and did homage to him.

Such a concept is hard to reconcile with modern ideas of the rule of law and of a common authority to which all persons, of whatever degree of superiority, are subject.  There are also many authorities in the modern Church besides bishops and Archbishops to which obedience is now required on the part of clergy.

Norman Doe criticises Canons C1(3) and C14.  He argues that one or other Canon is

‘legally superfluous: the oath amounts to a promise to fulfil a pre-existing obligation … [it] has merely symbolic significance … it is  unclear when an episcopal instruction is not honest and it is unclear whether an episcopal order which is lawful but not honest might be disobeyed’ (The Legal Framework of the Church of England (1996) Clarendon Press, Oxford, pp.213-14).

He also points out that churchwardens do not swear obedience to the bishop, even though they are the bishop’s officers (p.241).  The reason for this may be that the office of churchwarden is of post-feudal origin.

Canonical obedience was discussed in the Bishop of St. Davids case (1699) 91 English Reports 126.  The Bishop was tried by the Archbishop for alleged simony.  The secular court refused to restrain the Archbishop’s disciplinary action.  Chief Justice Holt stated that ‘By the common law, the Archbishop has a metropolitical jurisdiction … Archbishops are over bishops, as well as bishops over the other clergy’ (p.127). 

Thus canonical obedience in the Church of England derives its force from common law.  It originated in mediaeval canon law, but its operation within the Church of England requires its acceptance by, or incorporation into, English law.

Long v Bishop of Cape Town

Lord Kingsdown provided an admirably succinct and helpful definition of canonical obedience in the case of Long v Bishop of Cape Town (1863) 15 English Reports 756:

‘canonical obedience does not mean that the clergyman will obey all the commands of the Bishop against which there is no law, but that he will obey all such commands as the Bishop by law is authorised to impose’ (p.776).

The diocese of Cape Town was established for the first time in 1847.  The Bishop was appointed by letters patent of the Crown.  The letters patent conferred the usual powers of a bishop over lesser clergy, namely the rights to confer institution to benefices, to grant licences and to exercise discipline.

In 1848 the Bishop ordained the Rev Mr Long and licensed him to officiate in a church of which he, the Bishop, was trustee.  Mr Long then took the oath of canonical obedience.

In 1853, the diocese of Cape Town was divided into three new dioceses.  The Bishop resigned so that the arrangement could take effect, and was then reappointed to the newly constituted diocese under letters patent very similar to those of 1847.  However, between 1847 and 1853, the constitution of South Africa changed fundamentally.  South Africa was granted ‘home rule’.  Thus it became self-governing, with a legislature of its own.

Relations between Mr Long and the Bishop deteriorated in 1856 when the Bishop convened a diocesan synod and summoned Mr Long to attend it.  Mr Long objected to the synod and declined to attend.  The Bishop suspended him for disobedience but Mr Long ignored him and carried on officiating.  The Bishop then revoked his licence altogether.  Mr Long went to court to prevent the Bishop dispossessing him. 

The Privy Council supported Mr Long.  It was true that Mr Long had submitted to the Bishop’s jurisdiction by accepting office from him and by taking the oath of canonical obedience.  However, the Bishop had no power to convene the diocesan synod or summon Mr Long to it.  He therefore had no lawful cause to suspend Mr Long for refusing to attend, nor to revoke his licence for ignoring the illegal suspension.

The 1853 letters patent had not been effective to create any jurisdiction, because they did not have the sanction of the newly established South Africa legislature.  Moreover the letters patent did not purport to confer power on the Bishop to convene a synod and require attendance.  Therefore no decision of the synod could bind others.

Lord Kingsdown’s definition, and the Privy Council’s decision in this case, make clear that canonical obedience, despite its feudal origin, really means obedience to the law rather than to the superior personally.  The superior is entitled to obedience only when exercising powers conferred by law.

Obedience and Professional Discipline

Canonical obedience should therefore not be confused with the ‘evangelical counsel’ of obedience, which involves treating the will of the superior as the will of Christ.  Such obedience is not, and never has been, required of the merely ‘secular’ clergy.

Clerical disobedience is now dealt with under s.8(1) of the Clergy Discipline Measure 2003.  S.8(1) provides that it is a disciplinary offence for a clergyman to

(1) do any act in contravention of the laws ecclesiastical or

(2) fail to do any act required by the laws ecclesiastical.

According to the doctrine of canonical obedience stated by Lord Kingsdown in Long v Bishop of Cape Town, a clergyman will be guilty of disobedience to an order only if the bishop or other Church authority giving the order has the legal right to do so.  A clergyman is within his rights to disregard an order that is given without proper authority.

It is also argued that it is a defence to a complaint of disobedience, even to a lawful order, if the accused clergyman was not adequately notified of the order, or if the order was not clearly expressed to be an order rather than a suggestion.

The particular responsibility of all ordained, and lay, ministers is ministry of the Word and the Sacraments.  The general rule is that a minister must not only be ordained but also be authorised or licensed by a bishop, in order to exercise this ministry.  The bishop also has the primary responsibility for clergy discipline (cf s.1 of the 2003 Measure).

The bishop may therefore be described as the professional authority of his clergy.  He has a responsibility over them similar to that of the General Medical Council over doctors, or the Bar Council over barristers.

The Bishop, the Queen and the Pope 

The Monarch is the Supreme Ordinary of the Church of England.  Perhaps he or she should also be the object of canonical obedience in this capacity.  However, the Monarch is not referred to in Canon C1(3).  The Monarch’s ecclesiastical supremacy, like the office of churchwarden, is of post-feudal origin. Instead Canon C13(1) requires all ecclesiastical officeholders and ordination candidates to take the oath of allegiance to ‘be faithful and bear true allegiance to [the Monarch], her heirs and successors, according to law’.  This underlines the point that the bishop’s superiority over his clergy is limited by law.

Thus English clergy owe obedience to their bishop, but subject to their allegiance to the Monarch.  In the Roman Catholic Church, clergy are required to show ‘reverence and obedience’ both to their bishop and to the Pope (Code of Canon Law 1983, Canon 273).  This makes the point that a Catholic bishop shares his authority over his diocese with the Pope, on account of the latter’s office ‘uniquely committed by the Lord to Peter’ (cf Canon 331).  The Pope is not merely the bishop’s feudal superior.

Roman Catholic clergy are expected to ‘accept and faithfully fulfill’ any responsibility entrusted to them by the Church authority (Canon 274.2).  However, a priest who disputes his bishop’s decision on a particular responsibility has recourse to Rome, a process which resembles judicial review in English law (see Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.205).  The modern Roman Catholic doctrine of canonical obedience therefore resembles the English doctrine, being ‘restricted to those matters that are prescribed by … law’ (op. cit, p.201).